Editorial: Urge the Supreme Court to Stop UPL in Wisconsin

On March 8, 2010, the Wisconsin Supreme Court will hold a public hearing and open administrative conference to consider the State Bar’s 2007 petition to define the practice of law and provide an enforcement mechanism. Contact the court today to urge it to adopt the petition to protect consumers from the unauthorized practice of law.

In January and February a series of weekly articles was published on WisBar.org detailing recent examples of the unauthorized practice of law (UPL) in Wisconsin and urging State Bar of Wisconsin members to contact the Wisconsin Supreme Court directly and voice their concerns.

Because Wisconsin’s Supreme Court Rules currently lack both a workable definition of the practice of law and an effective enforcement mechanism, it is unlikely anything will be done about probable instances of UPL in Wisconsin – unless and until the supreme court adopts a rule addressing these deficiencies, as requested in the State Bar of Wisconsin’s 2007 petition.

The supreme court has ordered a public hearing and open administrative conference on the petition at 9:45 a.m. on Monday, March 8, 2010, in the supreme court’s hearing room in the Capitol.

It is imperative that State Bar members communicate to the court their concerns about the impact of UPL on both the profession and the public – today. The UPL petition has been vigorously opposed by lobbyists representing the insurance, banking, and real estate industries. It also has been opposed by other powerful special interests with little regard for protecting the public from UPL committed by unqualified persons in Wisconsin.

In December 2009, the State Bar’s Board of Governors unanimously approved a resolution urging the court to adopt the State Bar’s petition to protect the public from harm by those who engage in the unauthorized practice of law. In addition, the State Bar’s UPL Policy Committee published a strongly-worded editorial in the October 2009 Wisconsin Lawyer urging the court to approve the petition.

State Bar President Douglas Kammer reappointed the committee in July 2009 and added several new members, including former Wisconsin Supreme Court Justice Jon Wilcox, who issued a call last year for State Bar members to write to the court and urge justices to support the State Bar’s petition.

The State Bar’s leadership cannot carry this burden alone. Members also must act. The court is far more likely to approve the State Bar’s petition if it hears directly from State Bar members who can document the adverse effects of UPL on Wisconsin consumers.

State Bar UPL Petition Would Protect Consumers

Get Involved!

The State Bar’s UPL Policy Committee joins Justice Wilcox’s call to action and urges State Bar members who are concerned about UPL to get involved in persuading the court to adopt the petition as proposed by the State Bar. Because the court is acting in a rule-making capacity, it is perfectly appropriate for members to contact the court directly and support the State Bar petition.

Your action is needed today! Letters and comments in support of State Bar petition 07-09 should be emailed to gov Carrie.Janto wicourts Carrie Janto and gov David.Schanker wicourts Supreme Court Clerk David Schanker. Hard copies of any such comments or letters also should be mailed to:

The State Bar’s initiative, called the Legal Services Consumer Protection Act, responds to a directive issued by the court in 2004 asking the State Bar to document the consumer impact of unqualified individuals practicing law and to recommend changes. Wisconsin residents seeking legal services will gain additional consumer safeguards against businesses engaging in UPL if the court approves the petition.

The petition asks the court to take two actions: 1) adopt a new rule that clearly defines what constitutes the “practice of law” for consumer protection purposes, and 2) create an administrative system to enforce the new rule.

Only the Wisconsin Supreme Court Can Regulate the Practice of Law

A 2005 memorandum of law prepared for the UPL Policy Committee concluded the Wisconsin Supreme Court has the exclusive jurisdiction to define and regulate the practice of law in Wisconsin, including the power to prevent the unauthorized practice of law by both lawyers and laypersons:

“… the regulation of the practice of law is a judicial power and is vested exclusively in the Supreme Court … the practitioner in or out of court, licensed lawyer or layman, is subject to such regulation … the court has the power to make appropriate regulations concerning the practice of law in the interest of the administration of justice. …” State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193 (1961).

According to the memorandum, the Wisconsin Supreme Court has never exercised its power to protect consumers by establishing a definition of the practice of law or the unauthorized practice of law. The State Bar’s petition asked the court to protect the public by establishing such a definition. The memorandum also notes the court has previously enjoined laypersons from engaging in UPL (in State ex rel. State Bar of Wisconsin v. Keller, 21 Wis. 2d 100, 103 (1963)) – the very relief the State Bar’s petition asks the court to codify in the court’s rules.

Let the court know that as a Wisconsin attorney, you care about the harm perpetrated on consumers by nonlawyers engaging in UPL. Write to the court today and voice your support for the State Bar’s UPL petition!